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  • Hagel/Martinez Blunder

    I reviewed the complete Hagel/Martinez compromise bill and was surprised by one section that simply makes no sense at all.
    When reviewing a crime from the immigration point of view, the fact finders and the courts apply what's called the categorical analysis. Following this rule, the "minimal pattern of conduct required to violate the statute" must involve the negative immigration consequence in question to trigger such consequence. This is why convictions for simple assault for instance are ruled not to involve moral turpitude because touching somebody with "an attitude" is not, per se, a vile crime.
    The section titled "Removal of Drunk Drivers" classify these crimes are "crimes of violence" triggering removal for conviction of a "crime of violence" as an aggravated felony.
    While this could have been implemented as an independent subsection of the title it is however implemented under the "crimes of violence" statute. Now, it is established and well known that statutes must be read in the context of the title; thus, the DUI convictions must be crimes of violence under the statute. This means, under the categorical analysis, the "minimal conduct required" must involve violence to trigger removal. We all know that a DUI statute can be violated by simply "inserting the key on the ignition of a vehicle while intoxicated" and nothing more, as cited by the 9th Circuit. Now, this pattern of conduct does not involve violence. Every single court and the BIA has ruled that a DUI, per se, is not a crime of violence.
    Including removal of drunk drivers under under the "crimes of violence" does not make sense and goes against the opinion of every single court in the United States and other federal bodies, such as the BiA, in charge of immigration law.
    Not to mention that this new argument opens the door to a new St. Cyr because most DUI offenses are resolved by plea deals and do not go to trial.
    This could have been avoided by simply incorporating the removal procedures as a separate clause, pretty much what the House did in H.R.4437, but it's going to create a world of trouble under the "crimes of violence" provision.

  • #2
    I reviewed the complete Hagel/Martinez compromise bill and was surprised by one section that simply makes no sense at all.
    When reviewing a crime from the immigration point of view, the fact finders and the courts apply what's called the categorical analysis. Following this rule, the "minimal pattern of conduct required to violate the statute" must involve the negative immigration consequence in question to trigger such consequence. This is why convictions for simple assault for instance are ruled not to involve moral turpitude because touching somebody with "an attitude" is not, per se, a vile crime.
    The section titled "Removal of Drunk Drivers" classify these crimes are "crimes of violence" triggering removal for conviction of a "crime of violence" as an aggravated felony.
    While this could have been implemented as an independent subsection of the title it is however implemented under the "crimes of violence" statute. Now, it is established and well known that statutes must be read in the context of the title; thus, the DUI convictions must be crimes of violence under the statute. This means, under the categorical analysis, the "minimal conduct required" must involve violence to trigger removal. We all know that a DUI statute can be violated by simply "inserting the key on the ignition of a vehicle while intoxicated" and nothing more, as cited by the 9th Circuit. Now, this pattern of conduct does not involve violence. Every single court and the BIA has ruled that a DUI, per se, is not a crime of violence.
    Including removal of drunk drivers under under the "crimes of violence" does not make sense and goes against the opinion of every single court in the United States and other federal bodies, such as the BiA, in charge of immigration law.
    Not to mention that this new argument opens the door to a new St. Cyr because most DUI offenses are resolved by plea deals and do not go to trial.
    This could have been avoided by simply incorporating the removal procedures as a separate clause, pretty much what the House did in H.R.4437, but it's going to create a world of trouble under the "crimes of violence" provision.

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